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My Response and Thoughts on Land Policy and IDP Resettlement

I have said this so many times, my lips are tired.

I have typed this so many times, my fingers are tired and sore.

But I do it again here because it is important I say this to you, if you have never heard me or anyone say it.

This so much bent anger on land and IDP resettlement is not going to take us as a country anywhere; but anger or no anger, it’s is extremely naive to say one tribe will cling to power no matter what.

What we need in Kenya now and to the future, is all Kenyans to learn to love and live with each other in peace despite the wrongs of the past, which cannot all be cured.

PEV happened. Rwanda, from where hails my wife, had over 20% of its population, close to 1 million people hacked and butchered to death in 94 in less than 90 days.

Yes, over 1000 Kenyans lost their lives; Kenyans, not Kikuyus, Kalenjins, Kisiis, etc. The moment we accept this as the proper description, the far more we’ll go in this.

Yes, over 300,000 Kenyans are still in camps having fled their homes during the violence, again, these are Kenyans, not Kikuyus, Kalenjins, Kisiis, etc; just Kenyans.

But in context, this is not a problem we as Kenyans cannot resolve, if we are governed and guided by the principles of love for one another, which we are capable of.

Or to put it differently, the IDP issue is a symptom of an even larger problem we are not addressing which has to ultimately be addressed to bring all this to a close

And that is, Land Policy Reform. Hailing from Gusii as I do, I have over the years seen generational curving up of land parcels consistent with custom literally to pieces.

I told someone a long time ago that this land is going to be chopped into pieces people will start chopping themselves into pieces over it and its already happening.

So, my brother, take a deep breath, let’s come together and find common ground to address this complex issue without calling others haters when they call you the same.

Unfortunately, I do not see anything being done about this until after the elections which, if people rise above tribalism and elect a president based on leadership ability,

Then there is nothing we cannot tackle successfully as a nation, including land issues as long as those who lose accept and join with the winners to do just that.

This is not an impossible dream or wish; it’s quite the contrary very easy to achieve if people just learn to love one another and drop the hate, which is not a trait.

In the same vein, I have made the case and will continue to make the case on this blog and elsewhere that PEV does not belong in the Hague; let’s bring it back home.

And deal with it effectively and permanently.

More about this soon.

 
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Posted by on April 22, 2011 in Siasa

 

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Who Is William Ruto Part V

Who Is William Ruto

Part V

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey and Joshua Sang.

Efforts by Kibaki and his half of the government coalition to defer the ICC trial of the Ocampo Six having failed, the Six are headed to the Hague where Ruto, Kosgey and Sang are scheduled to be formally told today what it is they are being charged with. Their co-defendants will appear tomorrow for the same purpose. This is a formality with predictable outcome: the suspects will plead not guilty as charged, unless any of them confesses which will make an otherwise very boring day very exciting.

In this last series on Who Is William Ruto, I attempt to lay out what I believe his legal defense to be. As noted previously, I do this on principle and notwithstanding my criticism of the man which I will continue to provide when he is off the reservation. Now then, what is Ruto’s legal defense?[1]

As I noted in introducing this piece in Part IV, there is first the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

In sum, I see the following four defenses for Ruto (and by extension Kosgey and Sang) against the Charges he currently faces and outcome:

  1. The ICC has no jurisdiction. Fail
  2. The elements of the case not proven. Succeed.
  3. The Prosecutor’s evidence is not sufficient to establish “reason to believe” Ruto has committed these offenses: Succeed.
  4. Trial: Acquital

From the outset, I should note the final outcome of this case will be the same even if Ruto were to be tried in Kenya and thus my amazement why he joined Uhuru, Muthaura and Hussain (“UMH”) in fighting against going to the Hague.  On the other hand, it is more likely for UMH to be convicted at the Hague than at home for reasons I cannot get into now for the trio are not the subject of my analysis. Be as it may, I have already predicted acquittal for Ruto but let me elaborate.

By my count, Ruto has 3 basic defences and of these 3, one will fail but two will succeed, leading to his acquittal. The defense that will fail relates to the argument recently offered by lawyers Kibaki hired from outside the country to advise him after failing to secure a deferral of the cases and this is the jurisdictional argument, essentially arguing that the ICC does not have authority to entertain the case under the Rome Statute.

As I have argued elsewhere in my blog, this argument is doomed to fail for two reasons: First, the ICC can automatically exercise jurisdiction under Article 12 of the Statute over crimes committed on the territory of a State Party or by a national of a State Party such as the ones the Ocampo Six are charged with. In this case, Kenya, a State Party, actually referred these cases to ICC thereby subjecting itself to ICC jurisdiction under Article 13. These are more than enough reasons for ICC to satisfy itself it has jurisdiction but there is more that need not be explored here.

Second, on the question of admissibility of the Ocampo Six case which belies the question of jurisdiction, the ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the named suspects in Kenya. As of this writing, there is no such a thing going on therefore to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth elsewhere on this blog, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.

This then leaves Ruto with two technical defenses that ultimately he and the other two (Kosgey and Sang) will prevail on and these are the lack of “reason to believe” and failure to satisfy the definitional requirements of the elements necessary to secure a conviction under the Rome Statute.

In order to secure a conviction against Ruto, the Prosecutor must, among other things prove the existence of “a widespread” or “systematic” attack against a civilian population. However, Article 7(2) Rome Statute requires that the Prosecutor must not only prove that there were multiple acts directed against a civilian population in a systemic and widespread manner but also that these acts were pursuant to or in furtherance of a “State” or “organizational” policy to commit those acts.

There is no evidence and I don’t believe the Prosecutor can show that Ruto acted in furtherance of a “State” or “organizational policy.” Ruto was not part of the government during the PEV period so he could not have been acting in furtherance of a State policy. He campaigned and belongs to the Orange Democratic Party (ODM) but the party had nothing to do with PEV and certainly it did not have a policy of engaging in systemic commission of crimes against humanity therefore the “organizational policy” prong of the element of an ICC crime also fails.  The failure to satisfy the requirements of the “State” or “organizational” element alone could have the entire case against Ruto thrown out.[2] This is not to say Ruto could not be tried and found guilty of commission of the same crimes he is accused of if this element is not satisfied but that has to be in Kenya not at the ICC and perhaps this is why the Ocampo Six initially preferred the Hague but changed their minds later–I doubt though as there seems not to have been a coherent legal strategy about this but there is plenty of evidence political calculations played the upper hand.[3]

The reason the Rome Statute imposes a state or organizational policy element in ICC crimes against humanity is because doing otherwise will simply transform domestic crimes into international crimes on the basis of the quantitative outcome of the harm and the manner in which it is performed without wars. In other words, you can’t just look and say there were widespread and systemic crimes in the country therefore these must be crimes against humanity; you must also have to show that these were done at the direction of an authoritative person in the government, the government itself or at the direction of an organization which had commission of these crimes as a policy. None of this apply in Ruto’s case and thus my conclusion he walks on this ground alone.

The question, however, remains what kind of state or organizational involvement would be required, if Ocampo were to succeed in showing that Ruto was acting pursuant to some organizational policy. Gazetting such a policy would the obvious case for the government in this case but you know that will never happen, ditto for an organization to go to the presses with their policy to commit widespread and systemic crimes against civilians. At best, only inferential evidence can be offered in this case but only as against UMH and not Ruto.

On the other hand, a reverse corollary question to be asked and answered is would an act constitute a crime against humanity under the Rome Statute, if a state or organization turned a blind eye to acts committed against a civilian population? According to the Introduction to the Elements of Crimes Against Humanity, it is understood that “policy to commit such an attack requires that the state or organization actively promote or encourage such an attack against a civilian population. A footnote to this part of the text explains the following:

“A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of government or organizational action[4].” This level of analysis provides yet another reason Ruto walks free as it eliminates ODM being dragged into this in any way because the party had no such policy otherwise it would have been implicated from the beginning.[5] Having no provable organizational policy, the inquiry as to this question is at an end in favor of Ruto.

Ruto may also walk on failure to satisfy another element of an ICC crime and that is the “discriminatory” element albeit on a lesser degree.  Opinions on this issue have varied over the years, but according to many, some form of discriminatory intent is inherent in the notion of crimes against humanity[6]. Although the Prosecutor’s success or failure in satisfying this element is a toss-up in my view, his task may be made even more difficult given yet another related element and that is intent.

In conformity with Article 7, the Elements of crime against humanity also require that the perpetrator knew that the conduct was part of, or intended to be part of, a “widespread or systematic” attack. This discriminatory intent requirement which describes the context in which the conduct must take place, applies to all enumerated acts constituting crimes against humanity under Article 7. Article 30 of the Rome Statute meanwhile specifically states that, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge

According to the Introduction to the Elements of crimes against humanity cited above, however, proof is not required for determining that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. The mental element is satisfied if the perpetrator intended to further such a widespread or systematic attack. It is very unlikely in my view that the Prosecutor will be able to show this going by what has been reported. Ruto can simply argue, if he is courageous enough to, that all he ever intended to do was to repel attacks from the Mungiki thugs who had been sent to kill his people.

Ruto also walks even if a full trial was to be held on these same grounds (substantively by challenging the Prosecutors evidence or lack thereof, or successfully rebutting same) and on grounds, dispositively, I believe, that horrendous as it was, what happened in Kenya in early 2008 does not rise to the level of “crimes against humanity.” This is because the Rome Statute does not bring within its jurisdiction crimes that are unrelated to the widespread or systematic attack against a civilian population. The acts must be related to the attack and the perpetrator must have been aware that the crime was so related. Thus, Ruto, and the Ocampo Six for that matter can argue, successfully in my view, that what happened in early 2008 was acts of hooliganism and common criminality to be handled by the Kenyan courts. I am fairly convinced this closing argument at the end of trial will prevail if it has not before then as a technical defense.

For these reasons, it is my submission that Ruto walks at the Hague. Notwithstanding his going astray, ODM should support him for his trial at the Hague and hopefully in return for the good gesture, Ruto can go back to the drawing board and see where he miscalculated, make good with Raila and we all shall be happy again as a party which is good news for the country.


[1] Ruto’s defense in my view is substantially the same as Kosgey and Sang’s defense so when I say Ruto I include Kosgey and Sang in this context.

[2] Ruto may alternatively argue that even assuming, arguendo, that organizational policy is established, the acts were not “widespread” or “systemic” rather they were isolated and regional. In other words, in order to be “widespread” or “systemic,” the acts had to be committed throughout the county pursuant to this organizational policy. (Please don’t send me emails accusing me of how could I say this; after all, we are talking about thousands of Kenyans who lost lives. I know that fully but am advancing a legal defense the way I see Ruto presenting it)..

[3] Ruto has a solid defense nonetheless even if he were to be tried in Kenya and not at the Hague.

[4] Draft finalized text of the Elements of Crime, UN Doc. PCNICC/200/INF/3/Add.2(2000), p9 and n.6\

[5] Interestingly, Uhuru, Muthaura and Ali may walk on this ground as well.

[6] See generally, O Swaak-Goldman, “Crimes Against Humanity,” in G.K. McDonald and O Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Vol. 1, The Hague/Boston/London: Kulwer Law International 2000, pp. 143-168.

 
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Posted by on April 7, 2011 in Siasa

 

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Who Is William Ruto Part IV

Who Is William Ruto

Part IV

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Henry Kosgey, Hussein Ali, and Joshua Sang. Immediately following the naming of the Ocampo Six, President Kibaki and his half of the coalition government went into full gear in efforts to defer the ICC prosecution of these cases. These efforts have, however, thus far been futile and the case is moving forward. The Ocampo Six are now scheduled to appear at the Hague this week to have the charges against them formally read to them.

In previous parts of this five part series, I have tried to describe who Ruto is and what led to his being charged at the Hague as well the politics of all of this. In this second to last part of this series, I am offering what Ruto may have as a defense against the charges he faces. I fully anticipate some may take this to be a contradiction, namely, why would I be so critical of Ruto as I have been, yet offer a defense for him (as opposed to offering a case why Ocampo should nail him to the wall). I don’t think the two positions I have taken are inconsistent in any way; I am aligned with the Orange Democratic Party (“ODM”) and Ruto was one of those who supported and campaigned on the ODM platform.

I actually had an occasion to meet Ruto and four of the Pentagon Five at the Fairview Hotel in Nairobi just before the elections in 07 and told a Kalenjin friend I was with immediately after the meeting that, looking at that table, and given Ruto’s discomfort with our presence, it was my conclusion that Ruto could not possibly be on that team for much long after the elections.

I based my assessment on what I observed with the four sitting at table and told my friend this: there was Ruto, looking at Ngilu, Mudavadi and Balala and visually Raila who was not present at the time; of the four, he was the most visibly annoyed with our briefly joining them (we were actually there to have an unrelated lunch at a table next to the gazebo table where they were seated so we did the obligatory hello as we were passing by and actually had a very good chat with all but Ruto who was mum).

Be as it may, we moved on to our table after the brief chat and there I told my friend what I observed and thought: knowing he was the youngest of the four sitting there and the fifth Pentagon member who was not present but in his mind, Ruto must have surely been thinking if each ruled as president at a minimum one term, that would translate to 25 years before his turn arrived, going by the politics of the oldest first; if each ruled for a maximum two terms, he was then looking at 50 years before his turn. If you factor in the opposition taking one or two of those terms, add at least five more years, which whichever way he looked at it, he couldn’t possibly wait that long.

For this reason, I told my friend Ruto would soon have to find a way to cut the line and this could not possibly happen in ODM. The only way he could not have been thinking about this, I told my friend, was if he was given a pacifier in the form of a premiership which Ruto now claims he was promised but not given, never mind the person who he claims promised him this could not have offered him this as he was himself the Prime Minister.

My assessment of Ruto back in December 2007 to my friend and others has turned out to quite the case and I am sure others saw the same thing as Ruto has for all practical purposes abandoned ODM and seeks another path to State House shorter than what chance he has through ODM. There is one little stumbling block in the way, however, and that is the ICC.

I will in another blog analyze the political implications of the prosecution of the Ocampo Six or more relevantly, the political implications of the prosecution of Ruto and Uhuru. In this next to final part of my series on Who Is William Ruto, however, I set forth what I believe to be his defense against the charges he faces at the Hague. As I have noted above, I fully anticipate some may not understand how I can be so critical of Ruto and yet offer a defense for him or even why offer a defense at all for someone accused of serious crimes like this.

There are two things I say in response to this: First, as I have noted above and elsewhere in my blog, I have nothing against Ruto personally and even if I strongly disagree or dislike a number of things Ruto has said or done politically or otherwise, I would nonetheless still defend him over what he is charged with as a matter of principle because the accusations against him relate to when he was waring the ODM badge of honor.

This is not to say the party had anything to do with what he is charged with; it did not.

Second, in all criminal proceedings, all accused must be deemed innocent until proven guilty therefore offering a defense for someone like Ruto is not a judgment of his guilt or innocence. A good example given by criminal law professors to First Year Law students to illustrate this concept is, imagine you have graduated, set up a solo practice and someone walks into your office and says they have shot and killed their neighbor; what do you do? All sort of fancy answers are given except the one the professor is looking for: asking the person how do they know they have shot and killed their neighbor? Someone else could have fired from another direction at the same time and his bullet hit the neighbor first and therefore they are guilty of murder not the prospective client!

Be as it may be, defending Ruto is a position I have maintained from even before Ruto was publicly named as a PEV suspect as those I talk to know. Indeed, I would still defend Ruto in principle even if he were to formally leave ODM and join PNU (which he has for all practical purposes done). I will also continue pointing out the wrongs he is committing, including his ill-advised obsession with “blocking” Raila in the false hopes and belief that he could be factored into the Kibaki succession equation from the PNU side as a reward for such efforts. I will another time write a blog trying to answer the question why do politicians get so gullible they don’t know when they are being used by other politicians or if they know they are being used what does it say about their character?

For now, let me address the question what then, is Ruto’s defense against the ICC charges? First, there is the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

(In Part V, I will present the Ruto defense as I see it)

 
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Posted by on April 4, 2011 in Siasa

 

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Countdown to Ocampo Six at the Hague

As the countdown begins for the Ocampo Six to appear before the International Criminal Court at the Hague, I have started to reflect how we got here. I was in Kenya during the 07 elections and witnessed the vote rigging and ensuing crisis first-hand. I remember as things were getting really ugly with countless days of sleeplessness, I decided I would best serve our country by returning to the US and do what I could to lobby the US government in finding a solution to the crisis. A handful of my friends and I spent days on end in Washington knocking doors at the State Department, the Congress and the White House. Nothing else seemed to matter at the time, including going to work.

I know our efforts were not in vain for at least the US government shifted its thinking and fully joined the rest of the world in forcing Kibaki to agree to a power sharing deal with Raila. The rest, as they say is history. Some of it in the making, including the PEV Ocampo Six trial at the Hague which has created a crisis of its own if not abated recently. I recently wrote an open letter to President Kibaki which is on this blog but as the Ocampo Six head to the Hague next week, I have been reflecting and something happened today reminding me of the letter below I wrote to the then U.S. President George W. Bush. I was told the letter was handed to him by a US Senator who received it from is friend I am friends with. The irony of it was this was one Senator I did not like his politics at all during that time and still don’t! But I appreciated his act of kindness in agreeing to do this and know he is a very compassionate person; just has his politics on the wrong path.

The Ocampo Six are now headed to the Hague to be tried for the post-election violence (PEV).

In my next blog, I intend to continue with my series on Who Is William Ruto in which I postulate what his his defense might be. Yes, even as critical as I have been about what Ruto has been doing lately, I would nonetheless defend him over what he is charged with as a matter of principle because he is an ODM member. This is a position I have maintained from even before he was publicly named as my friends know. I will still defend Ruto in principle even if he were to formally leave ODM and join PNU (many believe he has for all practical purposes done this). I will also continue pointing out the wrongs he is committing, including his ill-advised move to torment Raila in the false hopes he could be factored into the Kibaki succession.

I will another time write a blog trying to answer the question why do politicians get so gullible they don’t know when they are being used by other politicians or if they know they are being used what does it say about their character? I suppose the quick answer is nothing to be desired and certainly not a shining example of good leadership. Anyway, some may question why I would be so critical of Ruto even as I offer a defense strategy for him against the ICC charges and my answer is I don’t have anything against Ruto as a person; I just have problems with what he at times does that seems totally selfish and opportunistic instead of aspiring to be a national leader which he could be if he shakes the demons that have been bedeviling him lately, especially his obsession to “block” Raila from ascending to the presidency. Ruto has no bearing on whether or not Raila is elected President and this is true despite his myopic belief that he does.

My letter to POUSA George W. Bush:

January 17, 2008

The Honorable George W Bush

President of the United States

1600 Pennsylvania Avenue

Washington, DC 20500

Dear Mr. President:

I am a Kenyan American and am writing to you in connection with the human and political crisis currently engulfing my native country, Kenya.  I write to you as an individual but my views are to the word representative of millions of others expressed by Kenyans to whoever can hear them.

As you know, Kenyans went to the polls on December 27, 2007 to elect their president and other political leaders.  By all accounts, the elections were conducted in a peaceful and orderly manner, with record turn-out in most precincts.  Tallying of the votes at individual polling stations was also conducted peacefully and orderly across most of the country.

I was in Kenya during the elections and witnessed this in person at a number of polling stations I visited throughout the day, going into the wee hours of the morning when votes were being counted.

Unfortunately, however, when it came to announcing the results by the Electoral Commission of Kenya (ECK), Kenyans in total disbelief witnessed the most flagrant, shameless and unprecedented systematic tempering in the collection and announcement of poll results that resulted in the declaration by ECK that the incumbent president had won the elections when he, in fact, lost in a landslide to his major opponent, Raila Odinga.

Indeed, the rigging was so glaringly obvious, independent international observers, including the European Union (EU), concluded that the presidential election outcome in Kenya is not credible. EU’s preliminary report on 2007 elections in Kenya is available at http://www.eueomkenya.org/Main/English/PDF/Kenya_2007_Final_Preliminary_Statement.pdf.

Meanwhile, on being declared the winner by ECK, the incumbent president hastily and within minutes had himself sworn in as president at a State House function attended by a number of members of his government that had just been trounced at the polls[1].

Shortly thereafter, Mr. Kibaki, through one of his ministers, banned live coverage of news events in Kenya and instructed media editors to edit information given to the public.  The minister also banned peaceful public demonstrations called by the actual winner of the presidential elections and his party.  The ban remains in effect and is being enforced by police and soldiers with instructions to shoot-to-kill.

The fraudulent installation of Mr. Mwai Kibaki as president of Kenya and his subsequent actions aided by his henchmen is not only an affront to Kenyans everywhere, if let stand, it would destroy what little gains Kenya has achieved in democratic reforms and will in all likelihood result in unprecedented violence and turmoil and quite possibly, genocide in Kenya. It would also destabilize the entire East and Central Africa region which depends on Kenya’s stability.

Mr. President, your leadership and, indeed, that of the United States is once again needed to make a difference in world affairs that affect the interests of the United States.  Kenya is not only strategically important in the East and Central African region, it is an ally of the United States in its war on terrorism therefore its stability is paramount.

Unfortunately, however, Mr. Kibaki and his advisors believe the US, in weighing what to do with the current crisis, in light of Kenya’s role in the war on terrorism, would more likely prefer to have Mr. Kibaki remain in power under the belief the US would rather deal with the “devil she knows” rather than the “devil she does not know.”

Kibaki’s thinking is flawed for a number of reasons and the US must not allow him to benefit from this flawed logic.  Kenya has been and will continue to be a friend of the United States regardless of who is in power on either end for obvious reasons—assuming, of course, that Kenya survives this gravest test to her survival as a nation.

If nothing is done and Mr. Kibaki remains in power despite having handily lost in the elections, I am afraid the country would degenerate into civil war and possibly genocide because the anger among the Kenyan people is deep and unlikely to dissipate unless a solution to the crisis is found that reflects the will of the majority of its citizenry.

Needless to say, Kenya’s disintegration into civil war would certainly be detrimental to the United States’ own national security, given the country’s role in the war on terrorism, not to say anything about the loss of lives and devastation such a civil war would cause.

Mr. President, there are a number of things the United States, through your leadership, can do to immediately bring about a peaceful resolution of the crisis in Kenya but I can think of four:

First, the US must demand that Kibaki lifts the media black-out and allow the free-flow of information the absence of which is causing grave anxiety, rumor-mongering and even death as people react to some of these rumors.

Second, the US must insist that peaceful rallies by Kenyans must be allowed and along with this, the incumbent Mr. Kibaki must immediately lift the shoot-to-kill order now in place that has resulted in innocent Kenyans being shot to death by trigger happy police and soldiers.  The continued banning of peaceful rallies only delays the inevitable because people are angry and they must ultimately vent their anger.

Third, the US should immediately take steps to enforce Ambassador Frazer’s pronouncement that the it will not be business as usual with Kenya, if a resolution of the crisis is not reached.  These steps should include at the minimum, imposition of sanctions on Kenya, cutting off non-essential aid, and the declaration of Kibaki and his clique as a persona non grata.  I realize these actions may be draconian relative to the US standard policy in these matters but what Mr. Kibaki has done deserves nothing less, even as a matter of diplomatic courtesy.

Fourth and most importantly, the US must insist on formation of a transitional government with a mandate to organize and conduct new presidential elections in Kenya.  This is the only fair resolution of this crisis because no one doubts that the elections in Kenya were severely rigged beyond the tolorable.  Had this been the normal rigging that invariably takes place everywhere in closely contested elections, one may be inclined to accept status quo and forge forward.

The rigging that occurred in Kenya was, however, blatant and unacceptable by any measure.  For the US, and the rest of the world for that matter, to allow Mr. Kibaki to nullify the will of more than 5 million Kenyans that went to the polls on December 27, 2007 with impunity would be contrary to the United States’ own policy of promoting democracy everywhere, not to say anything about the violence and turmoil that is certain to ensue in Kenya were that to be the case.

I therefore kindly urge you Mr. President to use your gracious office and proven leadership to assist us in reaching these goals and to do anything else within your powers to ensure attainment of peace and justice for Kenya.

Sincerely,

__________________________

Samuel N. Omwenga


[1] It is widely believed Mr. Kibaki was, in fact, sworn in before the ECK announced the results and the public was shown the video later.

 
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Posted by on April 2, 2011 in Uncategorized

 

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Who Is William Ruto Part III

Who Is William Ruto

Part III

After more than 2 years of speculation, the Chief Prosecutor of the International Criminal Court (“ICC”), Luis Moreno Ocampo finally made public on December 15, 2011 the names of suspected masterminds of Kenya’s post-election violence with William Ruto being one of them. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Hussein Ali, and Joshua Sang. Immediately following the naming of the six suspects or the “Ocampo Six” as they are commonly referred to, President Kibaki and his half of the coalition government went into full gear in efforts to defer the ICC prosecution of these cases. These efforts have thus far been futile and the case is moving forward, however.

On March 8, 2011, the Pre-Trial Chamber II (“the Chamber”) of ICC in the case of the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, found that there are reasonable grounds to believe that, from December 30, 2010 until end of January 2008, Ruto, Kosgey and Sang are criminally responsible as co-perpetrators in the commission of crimes against humanity in the form of murder in locations including the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts of the Republic of Kenya in violation of Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute.  According to the material presented, the Chamber found that perpetrators identified people belonging to enemy communities by checking their identification documents or asking for their names, killing them immediately by way of shooting with gun using crude weapons or arrows.

The Chamber also found that there were reasonable grounds to believe that Ruto, Kosgey and Sang as co-conspirators committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya, from December 30, 2007 to the end of January 2008 in violation of Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute.

The Court specifically found that between December 30, 2007 and January 2008, large gangs of perpetrators associated with the network created by Ruto and Kosgey strategically converged upon Turbo Town, the greater Eldoret area, Kapsabet town and  Nandi Hills town, and started burning down homes and properties owned or occupied by members of particular communities, namely Kikuyu, Kamba and Kisii, which were perceived to be PNU supporters. The destruction of property was the primary tactic used by the network’s perpetrators to forcibly remove these communities from the area in previous ethnic violence in the region.

Finally but not least, the Chamber found that from December 30, 2007 to end of January 2008, Ruto, Kosgey and Sang as co-conspirators  committed or contributed to the commission of crimes against humanity in the form of persecution, when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute.

Regarding torture, the Chamber considered that the material presented was not sufficient to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed in the relevant locations and at the relevant time referred to in the Prosecutor’s Application. This finding is without prejudice for the Prosecutor to present new evidence in the future substantiating this alleged crime.

The Chamber made the legally significant finding there was reasonable evidence to conclude that the PEV attacks were “systemic” and pursuant to an “organizational policy.” The Chamber noted that there are reasonable grounds to believe that there existed an organization which reflected a hierarchical structure, headed and controlled by Ruto and Kosgey by virtue of the different prominent roles they played within that organization. In addition, there are reasonable grounds to believe that, due to their positions and powers within the organization, Ruto and Kosgey were able to secure the execution of the crimes agreed upon by almost automatic compliance of the physical perpetrators with the orders given by the leaders.

Further, there were reasonable grounds to believe that from December 30, 2006 to the end of December 2007, Ruto, Kosgey and Sang, held a series of meetings in which they agreed on a common plan to punish PNU supporters and evict them from the Rift Valley, with the ultimate goal of gaining power and to create a uniform voting block in their favor.

The Chamber was satisfied that there are reasonable grounds to believe that Ruto—in his capacity as the most representative Kalenjin leader and head of the organization established provided essential contributions to the implementation of the common plan by way of organizing and coordinating the commission of widespread and systematic attacks that meet the threshold of crimes against humanity, in the absence of which the plan would have been frustrated.

The evidence indicates that there are reasonable grounds to believe that Ruto, during the preparatory meetings and in the implementation phase of the plan, gave instructions to the perpetrators – either orally or via phone messages – to carry on acts of murders, displacement and destruction of property against PNU supporters. In the opinion of the Court, Ruto satisfies the subjective elements of the crimes and that he was aware of the widespread and systematic nature of the attacks committed against the civilian population, in the context of which the crimes were perpetrated. More specifically, the material presented to the Chamber established reasonable grounds to believe that Ruto:

i.        overall planned and was responsible for the implementation of the common plan in the entire Rift Valley;

ii.        created a network of perpetrators to support the implementation of the common plan;

iii.        directly negotiated or supervised the purchase of guns and crude weapons;

iv.        gave instructions to the perpetrators as to who they had to kill and displace and whose property they had to destroy;

v.        established a rewarding mechanism with fixed amounts of money to be paid to the perpetrators upon successful murder of PNU supporters or destruction of their properties.

With regard to the intention of the Prosecutor to charge Ruto, Kosgey and Sang as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented in the alternative. In other words, a person cannot be deemed concurrently as a principal and an accessory to the same crime.

Thus, it is the Chamber’s view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect co-perpetrators, or any other form of liability presented or that the Chamber finds appropriate.

In view of these conclusions, the Chamber’s assessment with regard to the attribution of criminal responsibility for Ruto, Kosgey and Sang is that it shall be confined to those crimes in respect of which the Chamber has found reasonable grounds to believe that they were committed namely, the crimes set out in Counts 1(murder), Count 2 (forcible transfer of population) and Count 4 (persecution). Having made these conclusions of fact and law, the Chamber by majority decided to issue summonses to appear for the three suspects, Ruto, Kosgey and Sang, having been satisfied that this measure is sufficient to ensure their appearance before the Court. These individuals are now set to appear before the Chamber on April 8, 2011 for the formal reading of the charges against them.

(Part IV will continue to examine the ICC case against Ruto)

 
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Posted by on March 23, 2011 in Siasa

 

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Kibaki’s Continued Efforts to Defer ICC Case Is Doomed to Fail Without More

Kibaki’s Continued Efforts to Defer the ICC Case is Doomed to Fail Without More

As previously noted, any of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of the Ocampo Six. Three of the permanent members, US, UK, and France have categorically stated they will oppose therefore defeat any efforts to defer the prosecution at the UN. What then is Kibaki and his cadre’s objective for this so called lobbying? Again, as noted before, there cannot be any good reason for these continued efforts as far as the country is concerned. A local daily now postulates that all this is about keeping Muthaura in check so as not to spill the beans against the President himself. That’s obviously not a basis to defer the ICC trials.

As one who from the very beginning never believed that anyone other than those who in fact committed criminal offenses should be prosecuted by ICC for events that occurred post-election, including the Ocampo 3 (Uhuru, Muthaura and Ruto), I find these efforts to lobby the UN against these odds totally a waste of time and money. I certainly do not believe as others do that this futile exercise is nonetheless intended to lay the foundation to defy the ICC.

The sensible approach to address post-election violence (PEV) has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.

So, my suggestion has been and continues to be Kibaki needs to sit down with Raila and map this thing out in the interest of the country but to do so would require great courage from Kibaki as he will be afraid of being accused of caving to Raila who is not liked very much by those hard on pushing this reckless course of setting grounds to defy the ICC. The 3 things Kibaki and Raila can agree on tomorrow and easily diffuse this time-bomb are (1) immediately create new law to allow for local prosecution of the perpetrators of PEV, including the Ocampo Six (2) asking Uhuru and Muthaura to immediately step-down from their respective positions (3) recommit to immediate and substantial judicial reforms, including vetting of judges and the two leaders consulting and agreeing on the appointments of the Chief Justice, AG and DPP and (4) working together to defeat any efforts to frustrate or impede implementation of the new Constitution.

Given Kenya’s reputation for evisceration of political MOUs, however, such an agreement should be witnessed and signed by Kofi Anan.  With this done, this writer is confident the two principals, Kibaki and Raila can go to the UN with a credible case for a deferral not based on the current bogus reasons. Needless to say, taking this approach has pitfalls for either of the principals, especially in the succession politics but that should be deferred to be dealt with another day.

If a deferral is sought and approved under this conditions, then two things come to mind that must happen: First, after immediate passage of a law setting in place a mechanism to try the PEV suspects, including the Ocampo Six, a special tribunal court must be constituted immediately comprised of eminent judges preferably from outside the country to try the cases.

Second, the new PEV law must provide that for those who cannot be convicted of criminal offenses, especially the Ocampo Six, they can still be tried in civil courts if the evidence establishes that they contributed to PEV but the evidence is not sufficient to warrant criminal conviction.

There are four good reasons for providing intermediate punishment in the form of civil penalty and these are (1) anything other than trial and punishment of the Ocampo Six and other PEV perpetrators will be seen as impunity gone amok (2) on the other hand, the alternative civil punishment would provide a way out for those desperately bent on defying the ICC regardless of the consequences upon the nation, given fear of going to jail at the Hague is Motivation Number 1 and perhaps the only reason why going to ICC is being fought so doggedly by Kibaki in their behalf (4) and more importantly, a civil penalty, if that’s all that is obtained against some of these suspects (assuming the other get jail time) is so much the better for the country as it is a form of accountability and punishment which should satisfy the victims of violence and bring closure to this matter once and for all.

 
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Posted by on March 19, 2011 in Siasa

 

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Who Is William Ruto, Part II

Who Is William Ruto

Part II

In order to understand the International Criminal Court (ICC) case against William Ruto, it is necessary to provide background on this case that involves five other Kenyan suspects. In sum, on November 26, 2009, ICC Chief Prosecutor Luis Moreno-Ocampo (“ICC Chief Prosecutor or Ocampo”) sought authorization from Pre-trial Chamber II of ICC to open an investigation in connection with crimes committed during the 2007-2008 post-election violence in Kenya (PEV).

As a signatory to the Rome Statute and hence a State Party to the ICC, Kenya accepts the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for Ocampo’s investigation into PEV. As a matter of law and practice, however, ICC does not open an investigation unless the subject state is unwilling or incapable of investigating the crimes; ICC is in other words a tribunal of last resort with preference given to the member states to prosecute.

Consistent with this approach, Ocampo and the Kenya government agreed on July 3, 2009 that allowed Kenya one year to start such investigation and/or prosecution and further agreed that the one year deadline be set for September 2009.

In efforts to keep ICC at bay, and following this agreement, Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, Waki Commission, an international commission of inquiry established by the Government of Kenya to investigate PEV, failed to get the requisite consensus in parliament by the September 2009, leading to Ocampo seeking formal authorization from ICC to start his investigation.

In order to decide whether to open an investigation, ICC pre-trial judges requested clarification and additional information from the prosecutor on February 18, 2010. On 3 March 2010, the Prosecution filed his response to this clarification request which essentially comprised of a list of six names he had singled out as the most responsible for PEV based on investigations.

Almost all of Ocampo’s evidence thus far is contained in six boxes the Chief Prosecutor received from the Waki Commission on July 16, 2009. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence. On March 31, 2010, the Pre-Trial Chamber II of (ICC) authorized Ocampo to open his case against the six suspect as he requested.

On December 15, 2010, Ocampo publicly named the six suspects that he has evidence to show that they bear the greatest responsibility for PEV. The six suspects are, Deputy Prime-Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgei (now suspended for unrelated criminal case), Higher Education Minister William Ruto (now suspended for unrelated criminal case), Head of Civil Service and Secretary to the Cabinet Francis Muthaura, former Police Commissioner Major-General Hussein Ali and a journalist who works with a local Kalenjin FM station Joshua Sang.

Meanwhile, as the ICC process was inching toward indictment of the “Ocampo Six,” as the six suspects are commonly referred to, the political dynamics on the ground in Kenya took a twist of historic significance: Ruto, who is accused of masterminding efforts to have Kibaki renounce his illegal swearing in and instead have Raila installed as duly elected president, now is fully aligned with the same Kibaki and has become one of, if not the fiercest critic and opponent of the same Raila he staunchly supported in his successful 2007 presidential bid and whose party he ran and won a parliamentary seat, which he still holds albeit by name only as clearly is not part of the party anymore. Ditto Henry Kosgey, albeit to a much, much lesser extent, having recently apparently only opted to rise and fall with his fellow tribesman Ruto than remain on course with ODM.

Although a more detailed analysis will follow elsewhere in this series, it must be noted here that Ruto abandoning Raila and aligning himself with Kibaki is classic opportunistic maneuver similar to his ironically abandoning Moi to join Raila. This is because no sooner Ruto worked himself close to Kibaki, Kibaki stepped up his efforts to shield the Ocampo Six from going to the Hague, an obviously greatly beneficial albeit sacrificial switch in loyalty for Ruto, but only if the switch pays off with his avoiding trial for PEV.

More specifically, when Ocampo announced his list of suspects and made it known the train had left the station, Kibaki lobbied members of the African Union (AU) to support his efforts to defer ICC prosecution of the case, which he easily obtained, given most of these African leaders know ICC is always a footstep behind any of them. Many believe Kibaki took this strategy because (1) two of the suspects, Muthaura and Uhuru are dear and close to him for many reasons personal and political and (2) having Ruto on his side is a good and valuable check against Raila for his own plans for his successor in the next elections and no one believes that to be Raila, even though Kibaki would not mind if Raila is, in fact, elected.

In any case, after obtaining AU cover, Kibaki launched a full-blown campaign many believe is a waste of tax-payers money and time to lobby the UN Security Council for deferment of the ICC cases because 3 of its permanent members, the US, Britain and France have all said they will not support Kibaki’s deferral request. Given it takes only one permanent member of the UN Security Council to veto any resolution voted on by the other members, it follows therefore that Kibaki’s efforts to lobby the UN Security Council are therefore a waste of time and money as many believe.

Meritorious or not, Kibaki’s case for deferral, which is not supported by Raila, his partner in the coalition government, is essentially as follows: allowing the cases to proceed at the Hague will result in violence by those opposed to the move in Kenya thereby creating instability. Kibaki alternatively argues that he should be given time to set-up a local tribunal to try the suspects.

Those opposed to the deferral, which by all accounts is the rest of the country other PNU strongholds and some Ruto supporters oppose the deferral for the opposite reasons, namely, Kibaki and his part of the coalition are not interested in the prosecution of these suspects at the Hague or anywhere else, including Kenya and allowing the ICC prosecution to proceed will add, not take away from national security as justice will be done for the victims of the violence.

Despite all these indications that his efforts will fail, Kibaki and his team seem undeterred and as recently yesterday (March 17, 2011) his so called Special Envoy for the deferral campaign, Kalonzo Musyoka, was in New York trying to convince the Security Council to take on the matter and even though some media outlets reported that a meeting to take up the matter had been scheduled, sources at the Council said there was no such a meeting agreed to. As a local daily reported regarding cancellation or non-happening of the meeting, a “clearly miffed Musyoka sarcastically told journalists to ‘Go and ask Tinga about it, when questioned about the meeting’s failure.” The Standard Online, Thursday, March 17, 2011.

(Part III will continue to examine Ruto’s ICC Case)

 
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Posted by on March 18, 2011 in Siasa

 

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